Negligence - MCA Coding - RCD (CE) – Prosports - Technical Constuction Files
A reputable and well known firm of Marine Surveyors was recently found to have been “negligent and lackadaisical” in a three day trial in the High Court (Queen’s Bench Division of the Technical and Construction Court in London).
The Court awarded the full amount of a claim against the surveyors, amounting to the full purchase price of the RIB in question, as well as full legal costs and interest.
This case, in many ways, was a re-run of the “Big Yellow” saga. Indeed, Big Yellow featured in much of the evidence at the trial. Big Yellow was a Coded RIB which catastrophically broke up in an accident off Cornwall in 2005 and was the subject of a searching Marine Accident Investigation Branch (MAIB) Report.
The evidence given at this High Court trial, which concerned a brand new Prosports RIB, showed that there are still plenty lessons to be learned – in fact, it appears that nothing has been learnt from the near disaster with Big Yellow.
The main points in the trial were:
1. This all came to light after the RIB’s transom failed, after less than 30 hours use.
2. The Surveyors had been negligent when they assured their clients that the RIB was RCD compliant and was built to a standard that it could be MCA Coded.
3. They made the mistake of assuming that it was a “standard boat”. The Court strongly disagreed.
4. The Surveyors compounded the problem by not noticing (or certainly not reporting) that the CE Plate, Hull Identification Number (HIN) Declaration of Conformity and Operators Manual were all non-compliant, flawed or inadequate.
5. The numbers on the HIN and Declaration of Conformity did not even match.
6. They relied on what they assumed was RCD compliance through meeting ISO 6185-3 to say that the RIB was safe for Coding. This was wrong and a repeat of the Big Yellow mistake.
7. They asked to inspect the builder’s Technical Construction File (TCF) but then failed to follow up on this. The Judge thought they should have insisted on inspecting it. It seems unlikely, in this case, that there was ever a TCF.
8. David Greening (YDSA Surveyor specialised in Coding/RCD matters) gave expert evidence based on his observations and those of David Cox that the boat’s construction was inadequate and did not even conform to the lay-up schedule, which had apparently been used by Prosports, the manufacturer.
9. He said that to be a “standard boat” you need a proven design, a detailed build specification and quality control procedures to show that the boat is built to that design and specification. The TCF is meant to evidence all this. The Judge praised Mr Greening for the clarity, detail and perceptiveness of his evidence.
10. The Judge, in finding the original Defendant Surveyors had been negligent and in breach of their duty of care, was critical of their defence saying that it had been arrogant, had failed to properly address the issues and had attempted to stone-wall their former clients, who had been left with an un-usable and almost valueless boat.
11. Several times, the Judge expressed incredulity at the Defence’s claims that they did not seem to believe that their work implied a care for safety. The Judge though safety was fundamental ---- as most boat owners/users would.
12. First - Prosports appear to have produced a RIB that could not be shown to be complaint. Serious doubts were expressed at the trial about the Prosports’ design and build. Prosports was at the time owned, managed and run by Jason Norman, in Guernsey. Jason Norman is (or was) the coxswain of the St Peter Port RNLI Lifeboat!
13. Second – hopefully this will be another wake-up call to Trading Standards (responsible for RCD compliance), The MCA (Coding), Marine Surveyors and boat owners. The sea is dangerous enough in itself, without being put at un-necessary additional risk by those who should know better. MCA Coding of Commercial boats and RCD compliance on those used for pleasure are designed to keep us safe.
14. Thirdly – remember that the CE plate rules are complicated and the plate on your boat may only indicate that the builder has “self-certified” that the boat meets RCD acceptable standards. You still depend, in this case, on that builder’s integrity and judgment. This is the argument for employing the Marine Surveyor who should bring a critical and expert eye to see that things are as they should be. While this did not help in this particular case, it should have done so.
15. Fourthly – Hopefully there will be a wake up call in the industry that the TCF is an essential document.
16. And finally -- these are not trivial matters. Boats (a few exceptions) built after 1998 without a proper CE Plate, a proper Declaration of Conformity, and a proper Owner’s Manual are illegal if used for recreational purposes. Putting such a boat on the market could get you a prison sentence or a heavy fine. Insurers may use non-compliance as a reason for rejecting subsequent claims.